Supreme inconsistency? McKenna rulings 180 degrees apart

So can the Washington Attorney General do what he wants to do, or is he merely a working stiff lawyer, having to heed the directives of state officials?

That question was up for debate Thursday after the state Supreme Court handed down two, seemingly conflicting rulings about how Attorney General Rob McKenna must go about his job. In City of Seattle v. McKenna, the justices unanimously rejected Seattle’s attempt to force McKenna to drop his participation in a lawsuit with other Republican attorneys general who oppose new federal health care legislation. Gov. Chris Gregoire, a Democrat, is opposed to McKenna’s part in the national lawsuit and has questioned why he has the ability to take part, absent a request from her or some other state official. But the justices wrote: “The people of the state of Washington have, by statute, vested the attorney general with broad authority, and Attorney General McKenna’s decision to sue to enjoin the enforcement of the (health care law) falls within that broad authority.”

However in another Thursday ruling, Goldmark v. McKenna, the Supreme Court told McKenna he must represent Lands Commissioner Peter Goldmark, who wants McKenna to appeal a right-of-way case in Okanogan County. The county Public Utility District won a lower-court case allowing it to run power lines across some state trust land that Goldmark manages. McKenna had balked at Goldmark’s request. In a split decision, the Supreme Court told McKenna to take the case.

“Under the statutes, the responsibility is clear. Because we find no discretion within this duty, we… direct the attorney general to provide the commissioner with legal representation,” the ruling said.

In a dissent, Justice Debra Stephens said her colleagues were trying to have it both ways.

“We say in McKenna that the attorney general has ‘discretionary authority to act in any court, state or federal, trial or appellate, on ‘a matter of public concern,’ provided that there is a ‘cognizable common law or statutory cause of action.’’ Moreover, the McKenna decision rejects the argument that ‘where the governor and attorney general disagree, the attorney general may not proceed in the name of the State.’ This view is at odds with the majority’s analysis. Reading the two cases together, it is unclear why a writ of mandamus is appropriate to force the attorney general to follow the commissioner’s wishes in this litigation but is inappropriate in McKenna. Consistent with our decision in McKenna, I would recognize that the attorney general’s duty to represent state officers in litigation is generally not subject to a writ of mandamus. While the attorney general’s role to provide legal counsel is mandated by statute, it fundamentally involves discretion and legal judgment entrusted to an independently elected official. The statutory duty is for the attorney general to exercise discretion. This is no mere ministerial task subject to the extraordinary writ of mandamus.”

Jason Mercier, an analyst with the Washington Policy Center, was also struck by the apparent incongruity of the two decision.

“So under these two rulings, is the Attorney General the independently elected attorney of the people, or merely the government’s attorney tasked with rubber-stamping his clients wishes?” Mercier asked. “If the first, independently electing the people’s attorney makes sense. If instead the Attorney General is nothing more than the government’s attorney, perhaps the office would be better suited as an appointed position.”